tv Key Capitol Hill Hearings CSPAN October 20, 2014 4:00pm-6:01pm EDT
there will not trust the central government. so how do you get a body to do that? you have to put pressure on iran to get a body -- they might want to do it now. i think this is a fight that they want. i think i have gone over my time. >> terrific. i was just taking notes. really great. thank you very much, michael . hussain abdul-hussain and i tell-authored an article in the weekly standard about a month ago. hussain abdul-hussain did all of the heavy lifting. i just added my name to get credit. an interesting article about the origins of isis and who is a part of this and what this large rebellion looks like. i think that -- will start today by talking about that somewhat. >> thanks. thank you. thank you for having me.
told the armed services committee that the basic -- the most important fact in this strategy of defeating isis is to give some moderate sunni tribes to join the coalition against isis. on october 53 new plants in iraq in syria pledged allegiance to isis, which tells us that the tribes so far do not seem to be betting on the united states or its allies. then, so many reports and criticism against the syrian opposition, the tribes, we call them cops. they're not up to the fight.
so the question is, how come all of the tribes who fight on our side are the losers and the tribes to fight on the side of iran and has block are the winners? here you have it iraq-backed fighting and winning. the air power to take them down. the answer to this question is that we do not pick the tribes. they picked us. this is important because this goes back to how the tribes behave. their is a tribal code, and a tribal structure. a tribe is usually known by name and by genealogy, and even the horses have a genealogy. they are known for their
territory, usually at demarcated. so they are not as ambiguous as they seem to be there are junior ranking, second ranking. then there are strong and not so strong. what has happened everest's sixth synthesized and syria knew how to deal with these tribes in the tribal areas. and the tribal areas, the northeast as syria and the northwest of iraq and east of syria, these, they have at least 4-6 big travel company -- concentrations. the two most important of them, these are very well
connected with the saudis. to put this in perspective, the saudi royal family comes from the area. the mother of the current saudi king, his mother comes. so these tribes are connected. they have intermarriage. and because of this they were under pressure. during the days of saddam hussein, they propped up the junior ranking tribes. these junior ranking tribes, i can cite a couple. and these tribes were doing a really good at the expense of others. by the way, the mother of
osama bin laden hills from the area. coming from various tribes in syria. so, we are doing really well . and they hold areas, different provinces. now, how it changed hands from assad to the rebels is very interesting. the syrian revolution broke out on march 15, 2011. most of the north and northeast, assad just lost control really fast. the only province that kept holding and was still loyal to assad remained loyal until november of 2013. that is almost two years. first of all, the town is 300 miles away from damascus , almost a 6-hour
drive. it means that it is a thinly populated with assad security forces. the assad eat forces could not go and defend because of the long distance. logistics' would be hard, supply lines would be stressed. so there remain loyal because of the tribes who are still loyal to assad. then on november 2nd, 2013, all of a sudden klan's pledged allegiance. and then it became the capital of isis. and this change was -- the tribal forces just switched from being pro-assad to pro- isis. and there is no such thing as moderate or radical tribe they are radical. and when they pledge
allegiance to isis, that is very different from an individual joining isis. individuals join based on ideology, based on a direct salaries that cases receive from whichever group. the tribes joined ford different reasons. they look for the strongest power. when they saw that assad was going to fall, they changed. and then the only strong power that they found was isis. withholding arms. so the only strong power that they could join at the time was isis. this is how these tribes became isis. and by the same token, the tribes, these tribes in the northwest of iraq joined it
as well that people who form the military council of isis , five of them come from big tribes. three of them were high-ranking officers in the army. so now you get a picture of who these people are, how these tribes affect. one last note before i close . their reason why he's tribes -- of the united states got a big chance with the tribes of iraq, syria, and even in lebanon in 05, '06, and 07. they thought we were serious about spreading democracy and giving arms and money. we saw lebanon, the sunnu. this is a tribute.
iraq joined the united states. and they fought alongside u.s. troops and rejected al qaeda from there. what happened after that is interesting. we got disengaged. the national security adviser to vice president joe biden was handling this. at the time he reasoned that what is more important is for the prime minister to keep pumping oil to edge iraq out of the oil market. this concerns all kinds of conspiracy theories that we were there for the whale. the tribes thought, okay, america is not serious. they came. they left. we need a power that is here to stay. and that is either iran or isis. i don't think that the tribes will join as anytime soon. or the ones that will join will not be the strong ones. thank you. >> a very depressing assessment. thank you.
that was informative and terrific. the next speaker is andrew tabler, an old friend and colleague and also one of the premier, if not the premier syria x gasol x3. the administration larger vision of isis and the long bond. we will come back around to that later. >> thank you for that introduction. it is an honor for me to be up here with you all today, and thank you for attending. i see a number of friends in the audience as well. so, in terms of the administration's strategy itself to deal with isis as well as supplies to iraq and syria, that strategy generally is a iraq-centric approach.
start there. the reason why i use the ink blot analogy is because of the different parallels with the surge in iraq during the war, but also just the dealing with what is the -- what isis calls the islamic state, this mass of territory between -- that encompasses a lot of the euphrates valley. in iraq you have a military campaign which involves air strikes, of course, as well as bombing of certain factions inside of iraq and u.s. support to try and rescue certain minorities throughout the country. and these gentlemen to my left can explain it a lot better than i can't. that combined with an overall political strategy and that you want to try to get to or are aiming to get a more inclusive iraqi government that is more permissible and that can entice some of the tribes and others, particularly from the same population
which make up the base of isis back into the iraqi government said that it functions again. and in this particular case, in the case of iraq and not surprise the administration is starting there. the u.s. has a lot of experience there. while there have been a lot of problems, the iraqi system, at least you have the hope of change. it might not be real change or changes fast as we would like, but there is hope of change. prime ministers can come and go. their parties might not come and go, but certain figures can't. fixed positions can change. it is easier for americans to relate and it is because of that as think you have seen the administration emphasis on iraq bus from experience and possibility. in syria it is a completely different situation. u.s. action against isis, as far as i can tell, is not
part of any kind of strategy other than to degrade isis overall. there are some caveats to this. for example, trying to hit to isis political and military facilities to degrade the power primarily in iraq. also to have some of the rudimentary oil refineries, which have been set up in the river valleys. and that is logical. isis sells refined products, crude, oil to sustain part of its operation. and that is. >> smart. but in terms of the overall strikes, the administration is in a bit of a bind, particularly when isis is advancing. you saw and up taken strike, largely a reactive policy, but the overall problem in syria is you don't have hope of a political process. there is not one.
and the reason why there is not one is because the war in syria has hardened up positions among the different parties on the regime side as well as on the opposition side and made a political outcome there really a remote possibility at best. and i think that is, you know, part of the problem. the obama administration in intervening in syria is trying to intervene so that it does not tip the balance one way or the other. of course, the united states has a stated policy that president assad should step aside since august of 2011 and a whole slew of sanctions to go along with it that have been supported by primarily members of the bureaucracy and a -- very prominent former members of the administration but also on capitol hill. but over the course of this
-- to the serious crisis actually achieving that objective has meant increased u.s. involvement that the president himself is unwilling to put forward. basically, the president been before this dilemma for about a year. either the united states increases its effort with its allies to get rid of the assad regime, and there are a lot of ways you can get rid of the assad regime. it depends upon how, but generally that is what we are looking at here. that would allow for some type of process, a transition that they can fault the opposition into and bring the country together again. and the other part of this dilemma is just letting things go as they are and acquiescing to what are called cease-fires. involves the assad regime surrounding areas, major
cities, villages. they starve the people out, cut off water, drop beryl bombs and leave a little sliver of territory in the end for the fighters to run out while the regime moves in. activists are arrested and tortured, sometimes to death. and this model was held out as a way that the regime was going to come back a little bit earlier this year. we have two tracks. one, peace talks in geneva that went nowhere. and then there was this cease-fire model. a lot of people in the bureaucracy were betting on this cease-fire ma. they sought there were was windy and a sales. it was easier and more coherent, they thought, to deal with. and that is because -- we have to be honest about this -- the members of the syrian opposition also have tremendous fault and division that makes working with them very, very complicated. and the overall problem has
been that the nature of the syrian battlefield and that everyone is battling against president assad, they generally -- the groups have not consolidated. the leaves have not consolidated. therefore, you have al qaeda affiliate's fighting alongside nationalist battalions. and they do this on a regular basis. they are doing it right now in southern syria. and when they work toward a common purpose they're very effective, pushing the assad regime back right now toward damascus. the problem is, how do you support such a chaotic and unorganized state? it is not impossible, but it is difficult in that any arms or anything introduced into the environment could have fallen to the hands of al qaeda affiliates. and that would be bad, not only in the general sense but the legal sense. no politician wants to touch
it. so he was betting on assad coming back and carving out as much territory as possible. eventually the rebels giving up and there be some political process. that formula changed with the isis outbreak in june, fundamentally changed. and so now the problem that we have is that the assad regime is incredibly weekend there are a lot of problems internally, and they are losing ground particularly in the south and other areas. they have been trying to retake the largest city. the problem with the regime is, it can go out and retake areas but it cannot overcome. this is something that goes back to the beginning of the uprising. this means that not only are they unable to consolidate power in the west where they are strongest. they will not be able to go out to the euphrates valley.
and the question is, what can fill up that vacuum and take into account for the aspirations where sunni are in the majority. and it is dead right now we're starting from basically zero. the u.s. has had a covert campaign to support the syrian opposition. we deal with about nine groups there, if not more and they are supplied with weapons on a regular basis. but in an overall political sense they're not organized toward one end. and that the covert program will be folded in to the train and equip program that has been announced. but in the meantime we are striking these targets. and isis is not giving away. we don't have and opposition forced to fill that vacuum. it is in that situation that
we will probably see the assad regime tried to lash out and retake some areas, like we see them fail, as well as in the euphrates valley itself try and a certain cells. but in order to retake this -- i do not think you live one force retaking and holding this area in any coherent way. at this point if we keep going in the direction we are going in terms of our approach to syria, i am afraid that boots on the ground are probably a much more likely possibility going forward both in the next two years as well as for the next administration because i do not see one side or the other being able to really clean up this problem once isis is degraded. and i think that is going to be the main problem that this administration faces on the way out and the next administration faces on the way in. >> thank you. that was terrific.
well, that is a terrific introduction. i want to be able to come back later to specific issues like the fight between isis and the kurdish, but first i would like to fill out the more general picture, which i think is going to be helpful here. one of the things families is being said -- for this is how i would like to put it together. i believe that isis is part of a larger sunni rebellion which is the function of the policies of the maliki government, the function of the policies of the war of assad, and standing behind that is the islamic republic of iran. so the iranians have forces on the ground. the united states after the 2001 withdrawal is much more limited, much more limited leverage. what i would like to fill out now is, i would just
like a sense, what are the chances that the united states or administration can now address that issue, which i think we all agree one of the fundamental problems, how do we get the sunni to buy yen, whether it is the sunni tribes, the sunni that mike was speaking about. more so, how do we get the osama bin laden to buy and without leverage on the ground. i will ask mike to go first. >> we lost a lot of leverage with the sunni population when we and assured them that the iraq program would turn into jobs in the iraqi security forces and other jobs within the ministries. that did not happen. get friend of mine actually recruited a lot of these individuals and was met with hugs and kisses when he saw these guys in jordan. the last time he met them he had one of the individuals grab all of the coins out of his pocket from u.s. army battalions they had worked with over the years and
through them at his feet and said, what good are these? these are all broken promises. we have to reestablish that leverage, but how do we do that will be are not projecting now we are there, not taking -- not doing it 100 percent. we are simply doing airstrikes at night against targets of opportunity as opposed to a concerted effort. at this point, you know, you have to take them with the senate -- the sunni. but how does the u.s. get them to fight? absent a protracted commitment without an end date not going to. the iraqi government, there is so much iranian influence . the iraqi security forces went from 55% shia, 35 percent sunni to 95 or greater percent shia in the last four years.
other militias have been deputized. shia militias are now part of these national guard regional units that were supposed to stand up and fight isis. the problem is, these militias do not differentiate between the eight sunni military-backed can't the insurgency. and isis is counting on that as the push into baghdad, a violent response who are now legitimate iraqi security forces. as the iraqi army divisions try to reinforce the seventh iraqi army division, there is no trust. and the sunni military has fallen which just legitimizes baghdad's concerns that we cannot trust the sunni and iraqi security forces. >> if i can ask you, we spoke before about the appointment of general allan so does that auger positive
things for american policy? of. >> the selection of general allan, they were begging him to come back and not to restart cannot help restart the wakening because he is a credible figure. the thing with general patraeus, in there were from the very sunni that we need to fight isis. that was in tel he started seeing some of the powers. initially general allan was going to be the guy in charge of this. there was a kinetic line of operation. the coalition building. you don't have to provide air strikes are boots on the ground, but give us the intel, stop the foreign fighter flow. 2500 guys from tunisia, 2500 from saudi arabia, and 1800 from morocco that were able to come in through turkey
into the fight. and that is a problem. so there are things that coalition partners can do. general allan is the right guy to do this. he just needs to be empowered to do it. >> empowered how? am sorry to keep pushing. >> we have a country of american military that would be willing to go back right now, in fact. general allan was asked by the tribes. malachi ask patraeus to come back. the administration did not allow either one of this gentleman to go forward in the week. you have to be sanctioned by the u.s. government to be effective. you have relationships that have been established over the years with the iraqis, sunni, shia nationalist, cash market, and other groups in the iraqi government that want to see iraq stay together and be part of this process. one of the things we say is, we need to do the same thing
isis did, established temporary alliances. we need to do the same thing to take territory away from isis. if you have five guys at eight each other, if there is a snake going across the stage we will kill the snake first. then we can go back to hitting each other. if we kill a snake together we will say, maybe you're not as bad as i thought you were. the problem is, we say things that resonate in the osama bin laden population centers. the end date is two months away. something from the administration will say air strikes will end on this day . and absent putting pressure on iran to get a body to absorb sunni security apparatus, it is not going to happen. again, sunni, why would they trust in the first place. >> i will come back to the idea of putting pressure on iran regarding isis, which seems to be something that
the opposite is happening. in the meantime, you ended your introductory statement very depressed, not optimistic. i want to say, what would it look like, how could the united states put enough people in a room to kill the snake? what would that look like regarding the tribes? you say it is unlikely. what would have to happen? american military and political leaders, you expressed skepticism. >> well, first of all, i completely agree with what michael said. and i will try to get at that tribal dimension. first an anecdote from 120061. [laughter] >> the mongols took back -- they kept sweeping through and reached a point in the levant. and this town, and there he met an army.
and there would have been a battle. and then the jews, tried because they were hedging. they decided to split into two teams in the fight on each side. whoever wins will redeem the loser. so they need to work with winners. very important for them. and in 2006, the "washington post", that time was the time when the arab berlin wall had fallen. he said he was ready to join the u.s. campaign to spread democracy. and then one year after that when hezbollah swept through his area, he said, i have confirmed news from washington that they're coming to our rescue. he said, are you crazy? we will swim from here to the destroyers.
so they learned you cannot bet on the united states. and this is the same lesson. and michael says that they shout when they see general allan. this is because in the tribal lines said it is very important. i know the phrase, democracy they have to change, but we have to understand. we have to learn from the mistakes. we sent him to maliki and it iran. then, you know, maliki got -- cut the salaries, cut the army. there were on the rhone. yesterday the white house put out a press release saying we are sending him again to the people who do not trust him anyway. i completely agree. i am not saying we should send the old team, but to win tribes over we have to
prove that the u.s. and the coalition is the winning side and they have an interest in joining it and contrast the united states. then this will be a long time. they will not fight if this is something about the short-term. it taking on isis and degrading capability. they will not fight if it is only for the sake of the united states. they will not fight if it is counter-terrorism only. they will fight if it means beating the other tribes. that is how they fight. and, by the way, most of the fighting the ec now between the tribes and isis -- between isis and the kurdish predates isis and the syrian revolution. you know this. the kurds and sunni arabs have been there before
saddam and the iraqi state. we have to take these things into consideration. we have to get some allies and treat them the way that iran treats its allies. if you are a member of hezbollah, and now you're sitting in beirut. i mean, it is such a long-term thing that they do everyone who joined hezbollah is probably still fighting and now fighting in syria. either on the run from some policeman or some, -- or they do not have money or are trying to get support from isis or from whoever. >> let me just as quickly, what are the odds of success i guess there are two different ways to put it. the odds of success in defeating isis and the odds of success in quelling a
sunni rebellion and letting the sunni know that in spite of talks during saddam hussein that the sunni are still a part of iraq. what is the chance of either? >> so far they have been in the tribal area. they have not had any big wins except one. 2 million people, but many are still trouble. so we're talking about tribal areas. that would be, the instrumental fighting force. to defeat isis i would say that we have to get to the tribes, for example, one of the strong tribes who are pro assad. you might know one of them, the syrian ambassador in iraq. early on they wanted to join the army of the opposition and to fight.
they know how to fight. like guys said, we called him carpenters. now, in july, by the way, when isis was expanding and winning pledges of allegiance from other tribes they come in three hours killed 800 men. so these are the guys who are trying to join us. so what we have to show his resolve long-term, and then you will see the tribes. and then he will see them come to our side and you can use them in combination with u.s. air power and be isis in the area. >> that is a good transition i did want to take it up, and syria, especially the background, how you are in the trust of the tribes, any iraqi sunni if people would look to syria and say, this administration has sat on
its hands while more than 200,000 arab sunni have been slaughtered. they jump to defend kurdish, however wind sunni lives seem to matter, nothing at all. the administration has kept insulting efs8. how you get if you're looking at syria when the administration's policy has been to not intervene in a war, how you get to the sunni in syria or iraq or anywhere in the region to buy yen? >> i can think of a couple of ways. one would be to, first of all, i think it is important for the administration to realize it is in a hole in this regard and stop digging and what i mean is -- i'm not trying to be -- >> no, no, no. we have to understand that
the non strike incident of september 2013 -- that is what it is called in the government -- that got about 95 percent of the declared soft policy out of syria, not all of it. that is a good thing, but came at a tremendous political price for our relations and reputation in the world, and that is a larger discussion. but it also sent a terrible message to the sunni inside of syria. now, that is a problem. it is a little easier to do this week and not stuff when the minority -- wind and the number of sunni inside of a country like iraq is smaller it is a little easier to do. in the case of syria in need to have a political and military program.
the sunni inside of syria would like the replacement to the minority dominated the assad regime, and a shia of she supported the iran presented like to have transition away from it. that is one thing we can help them with. we have a stated policy to go that direction anyway. until now they have not seen it. the second would be in order to achieve that, practically , strategically, a big consideration for the united states. i understand that. you have to get the sunni powers in the region on your side to finances took the operation cannot adversaries, they are very good and with the president calls the flops again. they're very good at it. and our sunni allies in the
region are not, except for the geodesy. and so from a state central point of view it is hard to get all of the different powers to work together toward that, and end, and what the united states to step in and point things in that direction and would be willing to finance it. until now, the president has said no way. now, again that strategy would make sense in terms of both ending the war in syria and eliminating isis. it would make more sense if the number of sunni and sinus area where much smaller, like 25 percent of the population. but it is not a huge amount, and we have to find the alternative that takes into consideration sunni aspiration so that they don't join jihadists on half tactical or strategic level and also do not hold a animosities against the united states and carry out terrorist attacks. so that means not only
helping in this overall fight in syria, but not putting the country in a situation where six if this is ten and ratified and does not force it thought to be finances leases and other brick tower, perception of power all over the world and cost us tremendously among the serious opposition and sent many more serious over to the jihadists because they were seen as strong. and the way that this is, at the moment it is simple. the reason why the president takes the approach he does, it goes back to when he was elected. he was a reaction to what was perceived by the american people and those in the region that american aggression in the region -- okay. and this is well known, not controversial at all. there was a political fallout. and he was elected. and because, over time, what has happened is, we have
seen his passivity overall, throwing hands up in the air and saying all we can do anything. what is required is a smart policy based upon something that americans do very well. it is called assertiveness. it means working with allies in a smart way, and creative ways using their resources to defeat a common foe. we have been doing this for years, and this is what is required to truly defeat isis. if we do not do we now we will not defeat isis and not only during his administration but it will become harder during the next. >> thank you. that is great. one of the things that reminds me of -- a lot of talk about modernists and extremists. one of the things you're talking about in terms of the tribes. i want to come back to that. one of the things that strikes me is -- and it is not just this administration
the bush administration did the same, encourage the position of moderates and for moderates to step up against extremists. as everyone has outlined, the united states has been -- has done a terrifically bad job of backing moderates in the field. to back them rhetorically is one thing, but to let the extremists come in, whether that is isis, the islamic republic of iran and it hezbollah, these are big issues to put your money where your mouth is. this is one of the things we have been getting at command has not been happening. one of the things you were talking about, this divide preexisting isis. to talk about that for a second. and then i will ask you to talk about your sense of isis actual military capabilities and what it takes militarily to handle them. >> sure. well, and what we know is that one of the ways what --
was to use these same tribes to not beat them, but the animosity between these two. of course, it started in ancient times, you know, these mundane things. but we know there is a line between these two. end the assad used these tribes to beat the kurdish repeatedly. and win the power of assad was on the decline in that part of syria, then the kurdish did not take up arms against assad, by the way. they just tried to stay out of this whole thing. and now the offensive that you see from these fighters is, to an extent, not related to syria proper. and this started from the
very first day that the power of assad weekend. the reason why the kurdish form to these militias, self defending militias, they formed after the revolution, not to fight assad but to keep -- and by the way, in 2007-2008, assad did the same thing, harming the tribes because there were coming against assad. so with isis, they can pick up the flag and pretend this is ideology. it predates what is going on . >> very interesting. if there is anything you wanted to add. we have seen isis military capabilities, if you want to talk about that. >> yes. i want to go back to the military question.
but one of the things, when we started air strikes in syria, we were only doing them at night time, so isis developed a battle rhythm. okay. of the air strikes are over. we were not doing anything during the daytime. why? we did not want to lose u.s. pilots. we were afraid of the defense capability. we allowed isis to move captured u.s. and syrian equipment in support of the fight. so the air strikes started happening during the daytime. the problem is, all that equipment was already moved. now one of the good thing about the targeting it is they are generated by kurds, and you have seen the smart removed from iraq into syria to help. rival kurdish groups fighting a common enemy. and that is one of the things i want to go back to, isis military capability.
we're giving them too much credit for a lot of things. it was not done primarily with isis. was done with the sunni insurgent groups that did not like the fact that the military now was shia and there were telling people what to do. the charismatic sunni leaders were being put in jail because of the accountability and justice law and terrorism law, to laws that have ambiguous language. if i know you and you know a terrorist, i go to jail because of affiliation. it is such an easy way to marginalize political opponents and replace effective military commanders. so when shia militia's fight isis, we cannot just give one group credit, but we are doing that with isis. anytime there is a success we're saying is just isis that is doing it. it is not. when you have a common enemy , they fight together.
we have to be conscious of giving isis wait too much credit. the fight in baghdad, mortar attacks, is not just isis. it is these other groups, the measure had been and other units. but the thing is that when you have a common enemy they will fight together. any time isis asserts primacy over these groups, they resist. there are schisms, opportunities to do things. and a lot of those groups that they fought with, at the end of the road is the caliphate. in the middle is the return to bath this power. these groups will support isis until they get there. after that i would not be surprised if these groups turn on isis. they do not want a caliphate. they want to return to bath this power. the thing about partition just real quick, the sunni
want the whole country back. the -- is happy with the current set. they are actually happy with the kurdish. the shia are happy with what they have. the kurdish are happy with what they have. the sunni wanted all, and that is the issue. this is a rebellion, but there are factions that simply want legitimacy and to be part of the future and they want, and return, legitimate positions in government so that they're able to hold sway over what is being done and defending against an external threat, that being iran. >> i will come back in a second with a question. but -- >> quickly. this explains why turkey has been behaving the way it has been behaving. his predates all of the key to counter-terrorism. and, okay, you know, on our
terrorism last. these tribes, we have no interest. >> can you explain? >> for the group that is fighting -- that belongs to the pkk, a kurdish insurgent group that has been fighting turkey since the 1980's. and now america's terrorists are fighting turkey's terrace. we asked them to join us. they said no. to us these are terrorists as well. so instead of striking isis, they were striking the kurdish who are fighting isis. it becomes complicated. the reason is, it predates the whole situation that we have. >> that is great. one of the things i want to ask you, and then we will come back to iran, one of the things i want to ask you is, what right now is the administration's anti isis
campaign in syria? how is that affecting the campaign of assad regarding the fsa, the rebels? my understanding is that it is opening or giving him room to attack different rebel units now that the americans are going after isis. if you want to fill that out or correct. >> yes. american air campaign against isis could benefit both the fsa and the assad regime because both the assad regime and the fsa nominally consider isis to be an enemy. the assad regime is in its usual double faced position in that eight buys refined petroleum products in particular from isis because it cannot refine enough of
its own gasoline as well as crude oil. but at the same time it does fight isis. it is not true that it does not fight isis. does. and they clash. but they do not fight them very well. >> who doesn't? >> of the regime does not do very well against jihadists in general. they don't fare that well. there are a lot of reasons for that, and we can get to that in another part of the discussion. so what has happened is the assad regime, there has been a sort of quid pro quo. american jets are flying every day over syria. and syria's of formidable air defense is not shooting at them. the question is, well, what does the syrian regime did in exchange for that. and what they get in exchange for that is the united states is not actively trying to overthrow the assad regime.
instead the assad regime now is focusing its power on the fsa, more moderate units. they are focusing their attention on them and trying to gain ground. the assad regime is garrisoned in the middle of the country. and they try to go out and retake some of these areas, not that they're going to. instead, it is easier for them to try to make a run at arguably the losses sixth. to try to encircle the first and then start it out. caught agreed to a cease-fire. and so i think that what we are likely to see, if the administration's approach continues, is that we will see the assad regime real meaning in some areas visa be isis and the fsa, but it will be unable to go into the main heartland of isis
where isis is located and administer any kind of ruling, to retake and hold those areas. >> but that is because of its own deficiencies. >> it as a lot of problems in side of the -- it is well known. you can hear this from pro regime sources. they are tired. it is hard not just psychologically but also militarily for three years for a group of minorities to just savagely mowed down the majority of the population and try to shoot your way out of it. it is hard to do that. it is hard to convince people. we have seen a couple of minority factions inside of syria say, no, i do not want to serve in the military. most notably there have been protests last week where they said, we do not want to volunteer for these death squads. and the reason why i say death squads is an important
point which gets to the iranian aspect. the death toll figures inside syria. in the press the breakdown between regime and opposition, but look closer. usually in a story you will find it lower down. the number of national defence forces, which our forces trained by iran, all minorities and increasingly christians, enrolled in this militia. their percentage of the death toll is going up rapidly, and it is leading to a lot of communities protesting against the regime and its policies because they are the ones who are having to put their necks on the line with hezbollah and others. and you see, that just numerically has a limit because the population -- the sunni population is not only bigger, it is far younger. sunni have a lot more kids than other minorities. it is well known, and
statistics bear it out. that is the problem that the regime has, and that is why are so desperate, i think, at the moment to try and finesse themselves with american air campaign to save themselves, at least in their own areas. the problem that the united states has is, and like his old formula we had between cease-fires and trying to overthrow the assad regime is, i think we're looking at a state now of just partition. i do not see the assad regime moving into the euphrates valley or the opposition forces coming thier in agreeing on one flight in taking damascus. that is a big problem that will take a lot more than what we are doing to solve. >> i do want to come back to that because you mentioned the national defense forces. and you talked about, the kind of pressure that we can put on iran to get to the
iranians to convince to let the sunni have a fuller role in their own government. this seems to be right now from reports the opposite. what seems to be happening is the administration may be providing certain concessions in the nuclear talks because they're easier to have the iranians by an on isis. so is seems to be going in the wrong direction. the first thing i want to ask is, i want to ask you what kind of pressure could we put on the iranians if we were predisposed to do it? and what i want to ask the two of you, and we may have a few minutes for questions, how did we get here? is seen as right now in washington the main strategic issue is isis, when in reality the main strategic issue has been since this president took office, the iranian nuclear program, iranian nuclear
weapons program. right now with all this concentration on isis, it seems that the iranians have slipped to the back of the screen on the this. >> okay. russia has had a strategic message. china has had a consistent strategic message. iran certainly has. saudi arabia to some extent. the one country and everyone is looking to do fixes has not had a consistent strategic message. so the sunni -- we have been flow with how much we support somebody, and that is a problem. i met with a commander in 2008, and he said, it is better to be an enemy of the u.s. than a friend because at least you know where you stand. what he meant was, we support israel but because this administration is in power.
our strategic message needs to be more consistent. how do you put pressure on iran, you put pressure on russia and china and these other countries to say, listen, you need to bring sunni into the government. if this katie threat is serious enough that we need to go after it has an international community, the only people that can kill it are the sunni, and the only thing that can kill it, the etiology of isis heart sunni cannot be westerners trying to do this. one of the main things, the central government is simply an iranian puppet. how do we change that? we will not be able to change that. we have to get iran to change that. we can't do that. we have to get these other powers to try to push that. am concerned about the nuclear concessions. a strategic issue that we can deal with two years from now in order to kill this --
is short tactical target or 50-meter target. that concerns me. and when we see the administration meet with iranian officials it is always about nuclear issues but never about pressuring to get more sunni into the apparatus or release sunni political rivals from detention. werke sunni that could send messages to the community so the former minister of defense and former republican guard division commanders, a charismatic sunni who were simply arrested -- not simply arrested. i should not say that. were arrested because of their affiliation with the bath party. they need a charismatic sunni leader is able to generate or have messages resonated with the sunni communities using the terrorism law or accountability and justice law.
simply remove from the position. >> to the iranians really care about isis you know, let the arabs kill each other. hezbollah are a bunch of arabs, and shia, let them all fight. are they concerned about this? >> i think they have a good excuse. sometimes they are concerned, but if we think about the way we have been handling iran so far, and forget what is happening behind closed doors. look at the public statements, and then you did iranians saying, okay, you know, we assist assists since to produce possible started in addition errors. the iranians say, oh, great. ..
>> and, you know, to my mind the bt successful policy that we've had over the past ten years in iraq was the surge of troops that saved iraq from al-qaeda. and that surge of troops was ordered by president bush when he was taking all sorts of political heat in this town from both republicans and democrats. so he went against the politics, and he ordered what, you know, what was right which was consistent. and this administration is doing the opposite, you know? they look at the polls and say,
okay, now air power is fine. okay, we'll use air power. even if air power is only good against regular armies, not against militias. >> do you think they have, i mean, do you think the administration has a, look, i mean, maybe we should have phrased it like this, does the administration actually have a real policy toward isis, or do you think it's -- and, look, andrew, i'm going to ask you about messaging campaign regarding syria, but are we talking about is it a messaging campaign or is it a policy? >> i don't think they do. i think he's just ordered the bulling -- the leader of jews in lebanon, he just ordered the buildings of two mosques, he ordered the nonmuslim jews to start praying five times like muslims. he's probably hedging. he doesn't believe the u.s. has a viable counterterrorism or counter-isis threat. if he thought otherwise, then he'd probably think, okay, that's not a threat, and we can survive. >> interesting.
andrew, again, i'll ask sort of the same question. how did we get to the this place where three years ago or a little more than three years ago, march 2011, when the syrian rebellion started and the strategic common wisdom was to help topple bashar al assad would be a good thing because it would weaken the iranians. and now more than three years later where we are where we are, our concern is isis, and we're protecting assad, and the iranians are someone that we seek help from. how did this happen? if you want to talk about that a little bit, not just what's happened in the region, but what's happened here in washington. >> yeah. i think, you know, the best article i've ever seen summed up, summing up the administration's approach -- more recent article, i guess, there have been lots of phrases, light footprint, lead from behind. which one was first, i don't remember. the minimalist approach. and i think that's what the
president's doing. he's ramping up things slowly in a minimalist way hoping for the best outcome. and it's hedging, right? i mean, this is not new. it's not -- i think the problem we have is that it's increasingly apparent to the american people that we're not achieving our objectives, and that's a big problem. it's a big problem on a number of levels, particularly when you have the growth of a group like isis in a very chaotic civil war inside of syria where we had stated policies, and we didn't achieve them. and that's the reason isis exists to the degree that it does. if we had armed rebels earlier, would we have jihadists in syria? yes, we would. we wouldn't be starting from scratch. so the problem i see is that the minimalist approach will not take care of isis, and that's a problem for the united states.
the other problem is that our minimalist approach to syria isn't going to end the war there. and the reason this gets to the iranian part here, right, okay? the iranians and hezbollah, who they support in lebanon, and a lot of shia militias, they intervened in syria. it's a whole other fascinating story in all of this in that they intervened to prop up the syrian arab army and to develop the national defense forces inside of syria to train minorities to kill the majority sunni population and to shoot them into submission. and that, that intervention is due to a couple of things. it's their resolve to prop up their ally which backs up hezbollah and lebanon, but it's part of a larger issue, i think, and that is you have this thing called the stability/instability paradox. i know there are lots of non-proliferation people in the audience that know a lot more about this, but basically it's when a country gets nuclear weapons or nuclear capability or approaches that capability,
they -- their relations and their ability to deter stronger nuclear powers goes up. that would be here, israel, the united states and so on because you can't wipe out the regime. you have a nuclear weapon you can launch on someone else. makes sense. and your relationships become suddenly stable. but your tendency to wage proxy wars in the countries around you goes up dramatically. thus the stability/instability paradox. i think that's where the iranians are. they are pushing into areas that have traditionally been arab or arab speaking for centuries, and they're doing it in unbelievably strong ways. unfortunately, what they've done in this -- it started out as a war between a tyrannical government, minority government supported by iran against a peaceful uprising in the country. it turned armed. sunni countries in the region are dead set, they are desperate to break this iranian/shia axis
that comes out of iran, goes through iraq, through syria and over to lebanon. in a regime sense. and the way to do that, unfortunately, is to fight them to the last dead syrian. and that's the dynamic here. >> you mean the sunni powers. >> yes, that is exactly -- the fundamental misreading of this administration and a lot of other people in washington, too, to be fair. this is not a police action, this is not a counterterrorism action, this is a larger war in the region that we can, we can have all the meetings we want with the saudis and the turks and everybody else about shutting off the tap to this and the tap to that and so on. good luck. because they're not about to do it. because there are a lot of other -- they don't see things the same way that we do. it's not because they're bad, it's just they see them in different ways. and unfortunately, jihadists who are against the united states crop up in these ungoverned spaces and create a lot of
mayhem for national security -- >> well, i was just going to say it's very interesting the way you're describing this because, of course, the way that the president has put it in a number of interviews is that these sunni/shia conflicts are bad and proxy wars are bad, and that may be true, but the people in the region would have to look around. i'm sorry, that's what we've been doing for a long time. you heard hussein talking about the conflict between the sunni arabs and the kurds and this is a part of kobani. this did not start with isis. it's going on for a long time. so the administration clearly needs to get down there whether it likes it or not, it's going to have to look at it how the people -- doesn't necessarily have to address it this way, but it will have to understand how the people in the region see it. i'm going to open it up now and see if there is a question. and if you would wait until -- do we have someone in the room with a microphone? yes, we do. thank you. this gentleman right here
sitting right there, if you would just wait. stand up, please introduce yourself and ask your question. >> hi, my name is -- [inaudible] thank you. thank you so much for the amazing presentation. i'm an american jew, and i'll ask you the question of every minority in that region. basically, if in the future we're going to have u.s. troops on the ground, they will, for obvious reasons, they will definitely work with iranian-affiliated group cans. and this will legitimize their work. and i'm talking here about the militias and hezbollah. so how does that effect the longer term stability in the region in lebanon and in syria? thank you. >> husain, would you like to -- [inaudible conversations] >> did you say american jews? [laughter] >> all right, please. >> well, i think the point is at
this point if you need to hear because we know that the surge was based on three elements, clear, hold and transfer. and now the first two elements are missing. so -- or maybe the three of them. so we can't clear before we hand over to whether tribes or minorities or anybody else. so, i mean, talking to the iranians, yes, you know, there was a joint effort with the shia militias in iraq. there's a joint effort. u.s. fighter jets gave air power, air coffer x then these shia militias retook a town from isis. and, of course, sulemani was the first to take his pictures in this liberated area. and so, you know, at the end of the day if we clear, the towns go to the native people where
jews, sunni or shia. if we clear out of isis and -- [inaudible] or the tribes, then to my mind that should work. >> mike, do you want to -- >> no, no. that's good with me. >> all right. okay. if you could -- the woman in the front row here. >> hi, i'm penny starr with cns news. i wanted to ask michael, you said earlier about maliki saying to petraeus, you know, come in and we'll do anything you want. we heard from the obama administration for a long time that the war, he wanted to end the war, it was going to end at a specific time, and even with the status of forces agreement we couldn't stay any longer. so what you said seemed to completely contradict that. can you expand on that, please? >> sure, sure. we were the only ones back in 2009 -- you've got to remember 2008, 2009 after the surge we went from 57 takes per day in baghdad in 2005-2006 to ten
attacks nationwide after the surge. and after the suns of iraq -- sons of iraq were in place. and at that point we said, okay, we're going to treat the iraqi government like an independent government, a sovereign government. we were the only ones doing that. the iranians were heavily influencing maliki not to sign the status of forces agreement. okay? but that didn't mean we couldn't have pushed harder and done more things, ask we should have. the only thing you could depend upon when joe biden -- i'm sorry, vice president biden came to baghdad was rocket attacks. he would show up, he wouldn't be able to go into the castle for about three hours, and then he would leave. and there would be rocket attacks in the meantime. he was given the portfolio to push this, make this happen. we all knew at the time when we were there that, okay, this isn't like how do we keep a force here. we do it by doing an advise and assist. we do it with military equipment, military training, and we stay that way.
we could have stayed under the caveat of something else, but we chose not to because the protections weren't offered to american soldiers. you were going to be tried by this iraqi government, and we couldn't put any soldier in that kind of danger. but more could have been done. that's the biggest thing, you know? 57 attacks per day in baghdad -- >> i'm sorry, do you want to elaborate when you say more could have been done? what dupe by that? >> -- what do you mean by that? >> we could have pushed. you want the artillery, our special forces, we need a status of forces agreement, otherwise you're not going to have it. and then you use the sunnis and kurds that you had to put pressure on the central government to do exactly that. we were too much on the shias in the government to make those decisions without using leverage, and we literally took our hands off and said, okay, this is a sovereign government, let's see what it does. and it basically had a playbook. you've got to remember it was able to sit there for ten years and watch lawrence of arabia walk in for a year, the guy that
didn't want to be here walk in for a year, the guy that thought you could simply have a two hour dinner conversation with him, and he'd be able to change your mind. they developed a playbook. if these americans come in, what do i need to tell the americans to get what i want? this is too hard to do. i need more money. you need to back us up when we go after these certain targets. we could have done more. there were a lot of great americans who tried and a lot of great americans who said don't, don't try. let's respect, see what the goi does. >> you know, without being facetious, i guess i'm going to ask all of you because we're about to wrap up here the answer, look, we all believe that this is important. the president also has a point as well, how long are the american people supposed to commit resources, both their sons and daughters and their loved ones as well as money, to iraq? and we can say now, well, if you don't, then you wind up with a phenomenon like isis. and the counterargument might be is isis really a threat to the united states in yes, they might
put some nuts on airplanes and come here, but we may have that anyway. so what is the, what is the importance about committing resources to iraq that we shouldn't have withdrawn resources and that now we need to again? what's the, what's the argumentsome. >> real quick in 30 seconds --? >> sure. >> we coined the phrase recently operation inherent resolve. if the iranians coined that same operation phrase, it would be believed. because they've demonstrated that in syria. they've kept assad afloat. they've demonstrated their willingness to fight in iraq. but the way we approach this with this limited approach, it sounds more like incoherent resolve. and that's the issue, because the sunnis that we need to fight this thing don't believe us. they don't believe we're there for the long haul. >> hussein? >> i agree. we could have withdrawn, but at least we could have kept the -- [inaudible] on the payroll, the sunni fighters. we could have kept leverage. there's no need to throw allies
under the bus at every corner. and by the way, when we speak about committing resources, think how much iran is paying. the money that iran is committing to this fight is peanuts money compared to what the united states is paying. so, again, it only needs consistency and not that much more, not that much money and resources. but if we are swinging and, you know, we have to think, we have to think of the visual of when we want to beat isis, we -- our secretary of state goes and talks to the foreign minister of iran. that sends message to the sunnis, we're beating isis by talking to your enemies, the shia. so we have to keep these things in mind. and i don't think we are. we're just committing all sorts of mistakes whether visual or otherwise, and we then look at ourselves and say why is that happening? >> andrew, do you want to, do you want to take a stab at this one? i mean -- >> i, i had the opportunity to go to moscow earlier this year,
a conference by the russian defense be ministry. defense ministry. it was very interesting. ask what i i think i learned, i mean, it was fascinating the messaging. they think that president obama is actually sort of, some sort of mastermind. it's very interesting. and they think that he's, that president obama is behind what they call the color revolutions all over the world; the ukraine, what have you in syria. and that what he does is through this low minimal approach, he gets people to rise up against their governments, and then it starts in a civil war, and then it's used as a pretext for a u.n. resolution which then allows for american intervention then to flip that country over to its side. and then that's the way it projects its power. >> organized chaos. >> right, organized chaos. and i thought to myself, there were only five americans there, nato boycotted it, and i
remember afterwards saying to a russian colleague of mine, do you really think there's a plan? [laughter] i can assure you, this is not a plan. >> not as far as -- [inaudible] [inaudible conversations] >> you're not in the inner circle, you don't know. >> what i mean is i think the problem that we have is very simple, that it's very difficult -- autocracies in general are much better at promoting their power than democracies. it's amazing. even though we relate on a much more personal level and an individual level to the people who are inside of these countries and their aspirations. but we're just not good at projecting our power because we're saying, you know, what do i have to say to this american to get what i want, right? because they know how to divide us. they know who to invite over to. what do you want to do -- invite the following journalists over. they will write that the american government is behind all these secret things inside their country, and all we need to do is back x tyrant to shoot their way out of this problem. and the one thing the arab
spring did, and it's still inconclusive, is it challenged that notion. >> how, how is that? >> well, i think, you know, it's about stability, what is stability. and in the case of syria, we can definitely say -- i mean, if you look at the middle east now, right? you have the arab spring being reversed in egypt and in other places. but there are other -- and, you know, egypt's a nation-state, a long historical nation-state with a, you know, with a very strong military with a long tradition. but you have all of these other weak states. so the problem i see with the stability argument is it would make a lot more sense and, therefore, the russians would make a lot more sense if you didn't have the reality that the central governments and their militaries are too weak to retake ahold of the territory. so it's like when you go to a kissinger lecture, right? it's like listening to a symphony or watching a master chess people.
it's just beautiful because all of of the squares are clear, black and white. and i thought, my god, it's just like when i was a kid. but once it's over, you look at the situation, you realize all of the different squares on the chessboard now are broken. so you can move your piece over here, but you can't into these squares. i think that's the challenge for not only americans, but everybody. and if we work together to solve that, i think we can make the -- >> you mean to fix the chessboard or how to play a chezboard that is broken? >> i'll use another analogy. >> no, no, i liked it. >> my first job in journalism was with the middle east times in cairo, and we used to have a layout program called quirk. some of you probably, you work in publishing. so as young journalists we would sometimes to no end try and depict reality as best we could on the pages of the newspaper. and to middle east times' credit, they allowed us to do so. so we would put everything on the page, and we'd write our
words and put our graphics and so on, but there was this really tense moment when we had to see if it would actually work or not, and there was this button called snap to grid. boom, if what you laid out on the page which depicted reality didn't match the grid, the design said we can't do it. right? but in the end, i found that the only way that we ever really published the paper was we had to adjust the grid. i mean, there really was no way around it, right? because if you didn't, you didn't end up actually solving the problem. these problems are ones that humans have been dealing with for millennia. it is normal for political entities to grow ask to contract and -- and to contract and to break into pieces. i don't need to -- many european friends, these things are solvable. americans working with their allies can do this. right? but we need to do it in a way that's smart, that makes sense and actually we try and and achieve our objectives that we
outline. because if not, we'll just be -- then the russians will continuously be able to do what they've done in the last year, and that is use a militia, seize territory and then annex it over to its own territory and be able to get away with it. i mean, we have sanctions, but able to get rid of it. until we can counter that, we're going to have a problem projecting our power. >> i'm afraid we have to close, but that was fantastic, and we will recon convene in a few years to see if we got the grid right of. [laughter] in the meantime, thank you audience, thank you c-span, and thank you esteemed panelists. [applause] >> in montana's open senate race, republican congressman steve daines and amanda curtis
are debating tonight. that's live here on c-span2 at 8 p.m. eastern. right now a look at some of the campaign ads from that race. >> i'm amanda curtis, and i approved this message. we all know that it's not people like us who get to make the decisions in washington d.c. i'm amanda curtis. the only way to change washington is to elect folks who know what it's like when times are tough. i come from family that's a lot like most other montana families, and the reason i tenned up to the plate is the chance to be the voice for working families like mine. i'm amanda curtis, and working montanan ises deserve one of us in the u.s. senate. >> steve dangerous is a proud sportsman with an a+ rating from the nra. he understands how important hunting, fishing and the outdoors are to montana's heritage. in congress he's fighting to increase our access to public
lands, and he passed bipartisan legislation to protect pristine areas around glacier national park. he's defending our montana way of life and getting results. >> i'm steve daines, and i approved this message. >> the montana senate debate is live tonight on c-span2 at 8 p.m. eastern. then at 9:t 30, a conversation on baseball in american life. we'll hear from noted baseball fan, supreme court justice samuel alito, columnist george will and david brooks of the new york times. >> be part of c-span's campaign 2014 coverage. follow us on twitter and like us on facebook to get debate schedules, video clips of key moments, debate previews from our politics team. c-span is bringing you over 10 senate, house -- 100 senate, house and governor debates, and
you can instantly share your reactions to what the candidates are saying. stay in touch and engage by following us on twitter @c-span and liking us on facebook at facebook.com/c-span. >> now a discussion on government transparency. nsa surveillance and freedom of information act cases. this was part of the american bar association administrative law conference last week in washington. it's an hour and a half. >> good afternoon and welcome. we appreciate your taking the time to be with us today. i'm jim o'reilly from cincinnati, ohio, and and with me are distinguished presenters
who will be each giving their own perspective on privacy and information law. aye been in this -- i've been in this field since 1972 when the field was so obscure and so few people cared about it, that when i proposed a book in 1976, the four largest publishers said nobody's ever going to care about privacy, and nobody's ever going to care about freedom of information. the book is still going strong in its fourth edition. it's still a very significant item. but what's occurred in the last year and the background for today's topical discussion about developments, what's happened could be boiled down to two words: ed snowden. this morning at 4:15 as i was driving to the airport in cincinnati to fly here for this presentation, i was listening to the bbc, the british
broadcasting organization, and bbc had on a discussion about privacy. and to quote specifically they said, what's changed now is the development of big data for spooky uses. big data for spooky uses in the ed snowden era. and rather than trying to create our own topic, that's about it. we'll be talking about big data, who's listening to it, who's generating it, who's -- their word, monetizing -- who's monetizing that big data and what the significance is for individual privacy. so way back in 1972 when nobody cared and the freedom of information act was one on secure piece of legislation that was never -- obscure piece of legislation that was never going to go anywhere, the world has changed to a dramatic extent to now the international awareness
of u.s. national security agency listening, and the consequences of that privacy issue is being felt around the world. so i'm very pleased to join with us today here at the american bar with association's administrative law section annual conference on administrative law, and i'm pleased to introduce our first presenter who is head of government information privacy, professor bernie dell from newark, new jersey. bernie. [applause] >> thank you. good afternoon. i will not talk about so much about big data for spooky uses, but data for use by you and me, all right? so i'll be talking about public information and access to public
documents focusing on foia a with a few other ancillary matters. and one of my co-panelists, harry, will be splitting responsibilities for dealing with the public information side of this. all right. so i want to -- there have been a number of cases, really too many to summarize in a talk, so there's a rather extensive summary of many of the cases that were decided this year in the foia area. so i'll just concentrate on a few areas and a few cases. let me start with the definition of agency records because only agency records are subject to foia, and this year there have been two notable cases on that subject, u.s. v. story county, iowa, versus national archives and records administration. so in story county, which is on page 10 of materials or starts
on page 10 of the materials, that involved records, a local sheriff generated as a board member of the first responders' network authority or firstnet. and the u.s. district court in iowa held that the records were federal record and enjoined county officials from releasing them under the state public records act. so firstnet is an independent authority within the department of commerce and is responsible for the nationwide aspects of a nationwide public safety broadband network. and firstnet's governing board consists of three cabinet-level officials and 12 members appointed by the secretary of commerce. and story county sheriff paul fitzgerald was one of those 12 appointees. now, after this firstnet's organic statute actually exempts it from foia. so fitzgerald received and sent
e-mails regarding firstnet business from his story county e-mail account. nevertheless, the court found that fitzgerald was a federal official more some purposes -- for some purposes and that the messages regarding firstnet were federal records. and it didn't matter if fitzgerald had been appointed to the firstnet board due to his status as a local elected official. the court also rejected story county's argument that fitzgerald's receipt of e-mails from firstnet officials at his story county e-mail address constituted relief to a third party and, thus, voluntary waiver of foia's, of foia exclusion or exemption. the second case involving, involving agency records deals with the national archives administration, okay? this is cause of action versus national archives and records administration. and here the d.c. circuit held
that records of legislative commissions that are transferred to the national or archives are not agency records more foia purposes. and these, the legislative commission here was the financial crisis inquiry commission. and rather than rely on the standard tax analyst control test that generally cites these agency records, cases, the panel held that the transfer of records from an exempt entity; namely, any sort of legislative commission too narrow does not alter the records exempt status. so the court observed that narrow does not use archive documents in any operational way and in any way comparable to any other federal agency and, thus, any control over such documents consists solely in cataloging, storing and preserving them not
unlike a warehouse. so the court said -- and this is the d.c. circuit, actually -- says that this makes tax analyst case inapplicable. and after all that really to distinguish agency records from personal materials within an employee's possession. and the court said the tax analyst case is really divorced from foia's key objective which is revealing to the public how federal agencies operate. and the fcic records, the commission records, don't expose the operations of the archives or nara to the light of public scrutiny. want to move on to the exemptions, and i'm going to focus on two of the exemptions, exemption five and exemption
six. exemption five exempts from disclosure documents that, quote, would be available by law to a party in litigation with the agency and encompasses several privileges including the presidential communication privilege otherwise known as executive privilege. there's a case dealing with executive privilege this year at center for effective government v. u.s. department of state summarized beginning of page 13 of the materials. and they are a d.c. circuit -- sorry, d.c. district judge concluded that the privilege did not protect from disclosure president obama's presidential policy directive on global development or ppd 6 for short. now, presidential directives serve as formal notification to agency heads of a presidential decision in the field of national security, generally
requiring that agencies take some form of follow-up action. and, pd 6 calls for the elevation of the development of a core pillar of american power and provides specific policy guidance on implementing that approach. the judge concluded that ppd d 6 is a widely publicized, nonclassified directive that has been distributed broadly within the executive branch and used by recipient agencies to guide decision making. so in the judge's view, as policy guidance to be implemented by recipient agencies, ppd 6 had the force of law and was the functional equivalent to an executive order. the judge reasoned that the availability of the presidential communications privilege turns on the need for confidentiality to insure advice and here have found no such need particularly
given that ppd d 6 does not involve a uniquely presidential duty which is a little bit odd reasoning. and the court went on the say that based on the reading of the document, the judge found it was forward looking and didn't reveal the president's deliberative process. in short, the judge concluded that the president's ability to communicate its final decisions privately is not implicated. there are other cases involving the deliberative process privilege, but i'll leave those to be covered by the materials. and given the shortness of our time and want to move on to exemption six. exemption six allows agencies to withhold records whose disclosure would constitute a clearly unwarranted invasion of
privacy, and it's often raised in conjunction with exemption 7c which says something similar with regard to law enforcement records. there are two cases this year i want to focus on, the union leader case and a case called gilman. the first union leader v. u.s. department of homeland security, the summary which starts on page 22 of materials, the first circuit held that the names of aliens with criminal records arrested in an immigration and customs enforcement or i.c.e. sweep could be withheld pursuant to exemption 6 and 7c. and this is the first circuit panel held that aliens had a cognizable interest, rejecting the argument that no individual has a reasonable expectation of privacy regarding public arrest by government.
but nevertheless, the panel found the privacy interest attenuated given that convictions and arrests are matters of public record and also given that union leader was not seeking to actually contact the arrestees. the court found that this was a substantial countervailing public interest in disclosure, and it noted that one of the arrestees had remained in new hampshire until 2011 after having been ordered removed from the country in 1988 and convicted of criminal trespassing in 1993. the panel explained that the union leader could thus point to, quote, evidence that would warrant a belief by a reasonable person, closed quote, that i.c.e. had acted wrongfully or negligently in handling its removal duties. it concluded disclosure of redacted names will enable the union leader to investigate
public records pertaining to the arrestee's prior convictions and arrests, potentially bringing the light the reasons for i.c.e.'s apparent to to, the orn removing the alien. in that case a district court orders the release of names of landowners whose property would be required for the border fence separating the united states from mexico. a law professor sought the names and addresses of landowners who would potentially be affected by the border wall as well as correspondence among government officials about their contacts with landowners. and the law professor was researching legal historical property, environmental indigenous community and other
impacts of the border wall. the agency withheld the information under exemption 6 and also under, i think, under other exemptions which i think harry will talk about. the judge concluded that individual noncommercial landowners had a privacy interest for three reasons. first, given the extensive media interest in the border fence, disclosure would expose land openers or might ebbs pose land owners -- landowners to unwanted media contact. secondly, some of the e-mails between government officials would actually potentially reveal the owner's evaluation of their land and possibly the landowner's financial situation. and third, some of the documents might actually reveal some specific statements by some of the landowners about their views regarding the border fence. however, the judge found, quote,
a great public benefit to learning the social impact of the government's construction of the wall, close quote. and she revealed, she agreed with plaintiff that revealing the identities of the land owners might shed light on the impact of a wall and the placement of a wall on indigenous communities and disparate impact on lower income minority communities. and that is often an issue when you're talking about imminent domain issues. eminent domain issues. the judge actually surveyed cases involving the prediction of exemption 6 and essentially concluded that on balance if the requester can show that there's really some substantial public interest in disclose closing the information, then generally the case will come out in favor of
the requester and in favor of disclosing the information rather than withholding it on privacy grounds. and this is true even in situations where citizens' financial information might be implicated such as when records deal with reseat of -- receipt of government benefits for the value of property and acreage. all right. i want to move on to reverse foia litigation which i suppose is a lot less frequent than foia litigation, but it is an interesting d.c. circuit case from this year versus usda which is on page, it begins on page 34, the summary of that begins on that page. and reverse foia suits are, as you know, apa suits seeking to enjoin a government agency from
releasing a document that foia exempts from disclosure. so in -- [inaudible] the d.c. circuit held that the usda had not acted arbitrarily and capriciously in releasing information that dog breeders had submitted regarding their gross revenue and business sol unit -- volume. now, all animal dealers must complete a form, 7003, which asks for the number of animal purchases and sales during a given year and gross revenue from regulated activities. and the humane society sought copies of these forms, 7003s, for all dog breed earth. the u -- breeders. the usda agreed to provide the information. the dog breeders brought a reverse foia suit claiming that those documents should have been
withheld under exemptions 4 and 6. with respect to exemption 4 which covers confidential commercial information, the court noted that the usda had reasonably concluded that requested information was unlikely to cause competitive harm. the data on the form was too imprecise and stale for competitors to determine dealer's current prices for particular breeds. with respect to exemption 6, the court concluded that the usda had properly found a nonnegligible but limited privacy interest in income figures, a, quote, significant amount of the release of the information. that would help the public assess whether the department was fulfilling its statutory obligation to challenge reasonable and -- to charge reasonable and equitable fees
and allow public to properly assess whether fees were being charged in accordance with those regulations. the court found that the usda's balancing in favor of release was reasonable. interestingly, the court also rejected the breeders' suggestion that a public interest in disclosure in form 7003 information can exist only where there's evidence of agency impropriety. and here in this argument it referenced the favish case from 2004, and the court acknowledged that such a showing might be required when a foia requester seeks documents that would intrude on some privacy interests. but it said in this case in a reverse foia case, the plaintiff must show that the government was arbitrary and capricious in concluding that on balance the public interest outweighs the spruce on privacy. intrusion on privacy.
let me talk about a couple of cases involving government information and a combination of government information, government acquisition of information that are not foia cases. so the first is wisconsin airlines corporation v. hooper in which the supreme court liberally construed the scope of protection offered by a statute that confers immunity on airlines for reporting suspicious behavior. so the aviation and transportation security act, atsa, immunizes airlines and airplane employees from liability for reporting suspicious behavior to tsa so long as the report is not made with actual knowledge, quote, with actual knowledge that the disclosure was false, inaccurate or misleading, closed quote, or, quote, with reckless disregard as to the truth or falsity of
disclosure, closed quote. consistent with the court's articulation of the actual malice standard from new york times v. sullivan which congress had clearly referenced in the atsa standards, the court held that even reckless statements can give rise to liability only if material is materially false. materially false statement is one that would have a different effect on the mind of reader or listener from that which the truth would have produced. for purposes of atsa immunity, courts must, quote, consider the effect of the alleged false statement on tsa's behavior, closed quote. thus, the falsehood is material for atsa purposes only if a reasonable security officer would consider it important in deciding upon the appropriate
response to the supposed threat. just so you know a little bit about what the case is about, statements that the plaintiff who was scheduled to fly on a commercial aircraft was an unstable pilot in the first flight deck officer program who had been terminated that day by the airline, an expression of concern about whether the plaintiff was armed were not entirely accurate but were not, the court said, materially false. the next and actually final case that i'll address is a case that the court has granted cert on. so we'll be hearing the case this term. and it's mcclain v. department of homeland security that was decided by the federal circuit and interprets the whistleblower protection act.
the whistleblower protection act or wpa prohibits agencies from taking adverse action against an employee on the basis of, quote, any disclosure of information by an employee which the employee reasonably believes evidence of a substantial and specific danger to public health or safety, and here's the keywords, if such disclosure is not specifically prohibited by law. so the first circuit holds that, held that mcclain, mcclain, the whistleblower's disclosure, was explicitly protected by law and not protects because it violated regulation under the aviation and transportation security act, again, atsa, which directs the secretary of transportation to, quote, prescribe regulations prohibiting disclosure of information if the secretary decides disclosing the information would, among other things, be detrimental to
transportation safety. mcclain was an air marshall, and he leaked a tech canceling air marshal missions even though the department of homeland security was concerned about a potentially jacking plot. subsequently, when mcclain actually leaked something else and a fellow employee figured out, well, his identity, the department discovered that, you know, he had leaked this first information about the las vegas mission, and they fired him for disclosing sensitive information. federal circuit concluded in the absence of any contrary argument from any parties that to fall under the wpa's specifically prohibited by law provision, the disclosure must be prohibited by statute rather than by regulation. and the court noted that atsa
itself merely empowers the agency to prescribe regulations prohibiting disclosure of sensitive information. it doesn't do so directly. that said, however, the court noted that the atsa does direct the secretary to promulgate regulations pursuant to specific criteria, for example, only information that would be detrimental to aviation security. and according to the court viewed atsa as falling into the middle of a continuum which it thought significant, a continuum between on the one side detailed statutes prohibiting disclosure that really fall under the wpa's specifically prohibited by law provision, all right? and on the other pole, statutes in which congress delegates legislative authority to an
administrative agency without circumcising -- circumscribing finish interesting slip of the tongue -- [laughter] the agency's discretion. the court concluded that given the clarity of the statutory language in the wpa and the legislative intent behind the wpa's specificity requirement, the parameters congress set in the atsa were not sufficient to consider it a statute falling or falling within the specifically prohibited by law proviso. so that's a roundup of some of the highlights. obviously, there are more cases ensconced in the materials, and if we have time after all the presentations, hopefully we'll have a discussion which mayen compass some of those. [applause] >> thank you. thank you, bernie. i'd like to ask the c-span
editor if he'd, please, clip out the circumcision line. [laughter] we don't want bernie's students to be reading that. the other half of this subject is presented by harry, and i have to personally commend harry. harry is one of those heroes in the freedom of information act field who has been there, done that, written about it and as editor of access reports for 20 -- how many years? >> almost 30 years. >> almost 30 years, harry and i are the hearty perennials. me on the book side, him on the news editor side. we're honored to have with us the editor of access reports. harry? [applause] >> thank you, jim. i want to start where jim's first remarks about the snowden case, there were a couple of cases this year, and i'm not going to describe them, but you'll see how this all fits in,
a number of people who decided to sue the national security agency on the theory that since they collected everything, they must have records on these individuals. [laughter] so is though there were several suits that i've read and i think there's probably, i suspect there are probably of dozens of suits in the papeline on this issue -- pipeline on this issue. it was kind of an interesting theory, of course, generally speaking these people were really just average -- the one person, a guy named glenn carter, was from canada. i'm not sure, but it was clear from his litigation that he thought the nsa must have records on him because they had records on everybody. so that is, to me, that was kind of an interesting aside as far as the snowden connection is concerned. what i'm going to do is talk about some procedural issues and then end up with a couple of exemption issues as well. the first case i want to discuss
is a case called state of oklahoma v. the environmental protection agency, it's a district court case from oklahoma. and all these cases, the cases i'm going to be discussing are in the summary that you've been provided with. this is a case in which 13 attorney generals, state attorney generals had filed suit against the epa for records pertaining to the agency's nondiscretionary duties to take action under the clean air act. the agency responded to the request, the attorney generals' request for a fee waiver by saying, no, you can't have a fee waiver, and your request is too vague, and we're not going to respond -- we're not going to answer to it because it's too vague. one of requirements under foia is that an agency, a request has to be specific enough that somebody who is reasonably familiar with the records would be able to understand what
records you're talking about, and frequently agencies are faced with requests that are, that are often too vague. and so this isn't, doesn't come as any surprise. what the district court judge said was that, let me see, discussions with any interested organization or other organizations concerning the scope and application of the epa administrator's nondiscretionary duty to take certain actions under the clean air act was too vague. and the term "certain actions" is not defined in any way that it could be limited, and a professional epa employee would be left to guess what hundreds of actions that the administrator has the a nondiscretionary duty to perform. the plaintiffs were actually interested in. what the court suggested and what seems like a very common sense call way is that the
parties get together and thrash out a request that was narrow enough and understandable enough so that they could respond to it. i wanted to comment that, as i say, this is a relatively common problem, and it's a problem that affects both sides of the equation. requesters often times really don't know much about what the agency's records are like, and so they tend to make rather broad requests, and and often times their requests have to do with certain subject matter which they assume probably falls in, you know, seems to fall under the agency's jurisdiction. so agent -- so often times requesters are making rather broad requests, and agencies are then faced trying to figure out what in the world is it the person actually wants. is one way to deal with this, and we've talked about this for ages and it was, ultimately,
codified in the foia amendment in 1996 was for the agency to come back to the requester and say i don't understand what your request is asking for or this is really too complex, and it's going to -- too time consuming, and if you're willing to narrow the request and here are some suggestions, we can, we can handle the request more exwe dixly -- expeditiously for you. the trade-off for the agency is that the request gets narrowed and more manageable, and the bone that's been thrown to the requester is that they will respond to it more expeditiously. that often times still doesn't happen in practice, but, i mean, that's kind of where the statute is supposed to be. i have a friend who is a litigator in the national security area at the moment, and he has been fighting with the
cia on several occasions as to whether he had asked for records that had the modifiers like pertaining to or related to, and the agency said, oh, well, that's way, that's way too complicated for us to possibly deal with. and, of course, they didn't bother to ask is the requester -- to ask the questioner how he would like to narrow it. i will say that in at least one case, the agency won that argument. so that's not necessarily a losing argument by any means. the next case i want to talk about is actually a case brought by alan's organization, the electronic information privacy center, against the justice department. what epic was asking for was national security -- the d. of defense's -- i mean, not the department of defense, the department of justice's national security vision had reports they snitted to congress -- submitted
to congress summarizing the use of pin registers and trap and trace devices. and epic can asked for expedited processing, and the agency gave them expedited processing, also a fee waiver, but then nothing more happened, and so epic filed suit. and what epic wanted was for the court to say the court had to issue a preliminary injunction requiring the agency to respond within 20 days of the court's order. ..
and also the requester's right to appeal if they so desire. and, i'm sorry, crew had sued the fcc when it felt that the fcc's determination or what was they thought was a determination was not adequate enough and indeed the d.c. circuit court said the termination was enough and what true god as a result after 20